Excessive litigation confidentiality and disproportionate discovery are symbiotic problems. Indeed, when a litigant uses discovery to obtain damaging information about an opposing party, the party will often pay money to avoid public disclosure through a confidentiality agreement. As a result, litigants have significant financial incentives to seek damaging information through discovery, whether it is connected to the case or not. Nevertheless, policy makers largely approach discovery proportionality and confidentiality as unrelated problems. Take, for example, the recent proportionality amendment to Rule 26 limiting the scope of discovery, or “sunshine” statutes aimed at reducing litigation confidentiality for the sake of public safety. The reforms ignore one another and the tangled incentives that connect both problems.This Article is the first to address the confidentiality-discovery incentive relationship in the post-proportionality-amendment era. It contends that making private confidentiality agreements illegal, at both the pretrial and settlement stages, would reduce incentives to seek low-merits-value discovery.

Dustin B. Benham is a Professor of Law at the Texas Tech University School of Law.

Jonathan Grode, U.S. Practice Director at Green and Spiegel, joins the podcast to discuss the evolving landscape of business immigration law. Grode, who serves as an adjunct professor at Temple University Beasley School of Law, also shares humanitarian considerations and an anecdote from 2017’s travel ban.

Professor Stefanie A. Lindquist (Editor-in-Chief of Temple Law Review, Volume 61) joins the podcast to discuss the nomination of Brett Kavanaugh to the U.S. Supreme Court. Professor Lindquist serves as deputy provost and vice president for academic affairs at Arizona State University and has written extensively on the Court, including in her book, “Measuring Judicial Activism.” The […]

The Parliament Podcast welcomes Judge Nelson Diaz (LAW 1972) to discuss his forthcoming memoir, “Not from Here, Not from There.” The book chronicles Diaz from his youth in the Bronx to his ascent to becoming the first Latino judge to serve in the Commonwealth of Pennsylvania, general counsel for the Department of Housing and Urban […]

Temple Law Review, Volume 91 has launched the publication’s first podcast. In its first episode, the podcast welcomes Steven Silver (LAW 2013) to discuss the Supreme Court’s Murphy v. NCAA decision, local adoption of sports betting, and related considerations such as integrity fees and data agreements. The episode is available on both SoundCloud and YouTube.